Pebble sues EPA over attempt to veto mine

The Pebble Limited Partnership took the Environmental Protection Agency to court May 21 and claimed the agency is illegally overstepping its bounds by attempting to block a mine before the permitting process begins.

In a statement released in conjunction with Pebble’s complaint filed in U.S. Alaska District Court, company CEO Tom Collier said the plea to the court to stop EPA’s actions is not an attempt to strip the agency of its regulatory authority under the Clean Water Act. Rather, he said, it is an attempt to ensure guidelines set by Congress are followed.

“Simply put, EPA has repeatedly ignored detailed comments that we, the State of Alaska, and others have made about this massive federal overreach and continues to advance an unprecedented pre-emptive regulatory action against the Pebble project that vastly exceeds its Clean Water Act authority,” Collier said.

“If EPA ultimately vetoes Pebble before a development plan is proposed or evaluated through the comprehensive federal and state permitting processes, the precedent established will have significant, long-term effects on business investment in this state and throughout the country. Litigation is necessary in order to get the agency’s attention and bring some rational perspective back to the U.S. permitting process.”

In February, the EPA said it would initiate a seldom-used Clean Water Act process to block large-scale surface mining in the Bristol Bay region to protect the region’s robust salmon fishery. EPA Administrator Gina McCarthy referenced the 1,000-plus page Bristol Bay watershed assessment released a month before as reason to block Pebble, stating a large, open-pit mine in the region would cause “irreversible negative impacts on the Bristol Bay watershed and its abundant salmon fisheries.”

If developed, an Iliamna-area Pebble copper and gold mine would likely be one of the largest of its kind in the world. All of the company’s mineral claims are on state land.

While the EPA has vetoed wetlands permit applications 13 times since the inception of the Clean Water Act in 1972, it has never used the power to deny a permit before an application was submitted, as is the case currently with Pebble.

The regional Army Corps of Engineers handles wetlands permit applications under Section 404 of the Clean Water Act for all projects, public or private, that could impact wetlands. Subsection 404(c) states that the EPA can prohibit the use “of any defined area as a (material) disposal site” when the agency administrator deems the placement of fill material “into such an area will have an unacceptable adverse effect” on fish, wildlife or water supplies.

Pebble’s complaint states that Congress limited the EPA’s authority in the permitting process to reviewing applications after they have been evaluated by the Corps of Engineers.

Additionally, Pebble claims the mine’s impact on such areas cannot be judged because it has not released a formal mine plan or applied for wetlands permits.

“If the EPA veto proceeding is allowed to upend the permitting process, the entire administrative process will be eviscerated,” the complaint states. “There will be no concrete proposal, no specification of ‘such materials’ or ‘such area,’ no consideration of alternatives, no conditions imposed by a permitting agency, and no mitigation requirement. Neither the Corps nor the state will be able to bring their expertise to bear.”

By working to prevent development on state land in the region, Pebble also argues the EPA is also violating the intent of the Cook Inlet Land Exchange, a 1976 agreement between Cook Inlet Region Inc., and the state and federal governments.

Under the acreage swap, the State of Alaska was awarded ownership of federal lands with high mineral potential — the same lands where Pebble’s copper and gold claims exist today. According to Pebble, the mineral value of the land was “one of the driving factors in the state’s selection.”

In return, the state turned over property that was ultimately be conveyed to CIRI through the federal government. CIRI subsequently gave up its Lake Clark-area holdings north of Iliamna to complete the federal Lake Clark National Park and Preserve.

“Both the Statehood Act and the Cook Inlet (Land) Exchange legislation explicitly provide Alaska with the right to manage its lands for economic development purposes,” the complaint states.

Mine opponents have countered Pebble’s claims that a mine would ignite Bristol Bay’s economy by contending it would put thousands of fishing jobs in the region in jeopardy. The annual ex-vessel value of Bristol Bay salmon has been between $140 million and $185 million since 2009.

The EPA Inspector General’s office notified the agency May 2 that it would review the information gathering and science behind the watershed assessment at the request of Pebble, the State of Alaska, and members of Congress.

Pebble has claimed intra-EPA communications prove the three-year assessment process was biased against mine development from the get-go.

Region 10 EPA spokeswoman Hanady Kader has said the agency followed all prescribed public involvement guidelines in forming the assessment and that the 404(c) process, which usually takes about a year, will continue during the Inspector General’s review.

Trout Unlimited responded to Pebble’s litigation May 22 by demanding the group release a complete mine plan. The national coldwater fisheries nonprofit has been at the forefront of the fight against Bristol Bay mine development for years.

“Clearly, this is a last ditch effort from a company which now has no major mining experience on its team and has lost at every step of the way. It’s ridiculous that PLP is using resources to file a lawsuit but continues to refuse to apply for official permits after promising to do so for nearly a decade,” TU Alaska Executive Director Tim Bristol said in a formal statement.

“The fact is, (Pebble Limited Partnership) can apply for a permit today, but they refuse to do so because they will have to reveal to the public once again that they will build a colossal open pit mine, impact wetlands and waterways, destroy salmon habitat and threaten thousands of jobs and unique way of life.”